Public Bill Committee

[Mr. Hugh Bayley in the Chair]

Clause 1

Meaning of “the probation purposes”

Amendment proposed [this day]: No. 24, in clause 1, page 2, line 25, at end add—
‘(6) This section applies to—
(a) the functions of the Secretary of State; and
(b) the functions of providers of probation services and their officers so far as they are exercised for the purposes set out in this section.
(7) In exercising those functions the person concerned must have regard to—
(a) the protection of the public;
(b) the reduction of reoffending;
(c) the proper punishment of offenders;
(d) ensuring offenders’ awareness of the effects of crime on the victims of crime and the public;
(e) the rehabilitation of offenders.’.—[Mr. Garnier.]

Question again proposed, That the amendment be made.
Mr. Edward Garnier (Harborough) (Con) rose—

Crispin Blunt: On a point of order, Mr Bayley, and I apologise to my hon. and learned Friend for interrupting him. In our discussions this morning on the motion to admit written evidence, the Minister was kind enough to say that the Home Office would transcribe the evidence taken yesterday by several members of the Committee and others from Lord Ramsbotham, Sir David Green and Martin Narey. I have the compact disc here and, with your permission, I pass it to the Minister.

Hugh Bayley: That is not a point of order for the Chair. The hon. Gentleman can, of course, do what he likes with his CD and appears to have done so.

Crispin Blunt: I am extremely grateful to the Government for their offer.

Edward Garnier: I always like to start an afternoon sitting with a degree of happiness. May I welcome you to our deliberations, Mr. Bayley? I was coming to the end of an anecdote about public confidence and how it related to a particular case I sat on as a Crown court recorder. The point that I was making does not need to be repeated. In essence, I was struck by what the hon. Member for Stafford said. In a moment I will try to relate what he said to what the Minister said.
 Before the Minister spoke, the hon. Member for Cheadle was good enough to support broadly the case that I was mounting in favour of our amendment. He and his colleague share our concerns and our desire to ensure that the Bill, if it is to work at all, works in a practical way. I therefore will not damage his arguments by attempting to paraphrase or repeat them. Suffice it to say that what he said can be read in the Official Report tomorrow. I am grateful to him and his hon. Friend for their presence and their support for the amendment.
The Minister referred to the National Offender Management Service strategy, which was not published but was circulated within the Home Office—

Gerry Sutcliffe: It was published.

Edward Garnier: It was published—in early 2006. I cannot remember whether Helen Edwards was the chief executive at that stage. I think that she was pretty close to the senior levels of NOMS at that stage. That is fair enough. If the strategy is a published document and accessible by the public, that is fine. But it is not legislation and it is capable of being ignored. It is not owned by other providers of probation services. It is important that if the non-strategy is to have any practical effect and to be carried out in an orderly fashion, it should more closely reflect what is in the Bill.
I became a little concerned when the Minister started talking about what he called the interface between statutory obligations and contractual obligations. One of the concerns of some Labour and Liberal Democrat Members is the provision by non-state operatives of a criminal justice function, namely the provision of probation services. If the non-state actors—the third sector, the charities and the private companies—are not to be tied closely into the obligations that the Bill places on the probation services, they, and certainly I, would need to be convinced that the contractual terms enforceable not simply at law through tedious and lengthy court proceedings, but by means of ministerial direction or other order. That is why I was concerned when the Minister seemed to think that there might be room for a difference between the statutory obligations and the contractual obligations. If I am wrong about that I am happy to be corrected.

Gerry Sutcliffe: I apologise if I confused the hon. and learned Gentleman; it was not my intention to do so. He makes a fair point. Returning to what my hon. Friend the Member for Stafford said, I was slightly concerned that we might be causing confusion about the interface between relationships with the private or the voluntary sectors. We do not want to increase the risk to the public. I hope that that explanation helps the right hon. and learned Gentleman, although it may not do so.

Edward Garnier: I hope that that has been of assistance to some people.
I want to draw on some of the Minister’s remarks when, having listened to the hon. Members for Stafford and for Cheadle and to me, he said that he was happy to reflect on what had been discussed this morning. Often, that is code for “Thank you for your remarks. You have taken up the whole morning’s sitting and I wish you wouldn’t take so long. Yes, there will be a Report stage, but frankly you shouldn’t think that anything you have said will find its way into the Bill, even though I’ve said I will reflect on it.”
 However, I have a suspicion that we are dealing with a different sort of Minister, who wants to keep his word. When he says that he will reflect, what he means is that he will take the ideas presented by the hon. Gentlemen and me back to his Department and think about them. Given the tone in which the Minister responded to us, I suspect that he would very much like Government amendments to be tabled and debated in Government time which will have the support not just of what I think is called the payroll vote, but of members of his party such as the hon. Member for Walthamstow, who represents the purest form of support for non-contestability within this aspect of public policy. I complimented the hon. Gentleman on Second Reading and it was genuinely meant.
I think that the Minister wants to return on Report with a well thought-out and crafted Government amendment that reflects the concerns that the hon. Gentlemen and I have expressed. When the Minister says that he will reflect he does not simply mean that he will squirrel away what was said in the debate and ignore it; he means that he will do something positive about it.
I do not know what the hon. Member for Cheadle and his hon. Friends will want to do, but I am taking the Minister at his word, and I will advise my hon. Friends that I am prepared to ask the leave of the Committee to withdraw the amendment. However, before doing so I will give the Minister the opportunity to intervene so that he can clarify precisely what he intends to do and what he means by “I will reflect”.

Gerry Sutcliffe: The hon. and learned Gentleman is quite right. I have worked with him and his hon. Friends on previous Bills and he knows that my way of working is to reflect on what can be done with a view to tabling amendments on Report, if that is appropriate, and, if it is not, to write to members of the Committee to let them know that that is not possible.
I genuinely believe that there are grounds for us to consider the matter, judging by what has been said by not only the hon. and learned Gentleman and the hon. Member for Cheadle but my hon. Friend the Member for Stafford.

Edward Garnier: It is extremely helpful to know that in this context “reflect” does not mean simply that the Minister will bounce back the light beams that have been shone at him from all around but that he will absorb them and then send out information. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of the debate on the amendment proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 1 ordered to stand part of the Bill.

Clause 2

Responsibility for ensuring the provision of probation services

James Brokenshire: I beg to move amendment No. 4, in clause 2, page 2, line 43, leave out ‘or will be’.
May I pass on my welcome to you, Mr. Bayley? I look forward to working under your chairmanship.
Subsection (1) states:
“It is the function of the Secretary of State to ensure that sufficient provision is made throughout England and Wales”
for fulfilling the purposes of probation that we debated under clause 1. In so doing, he may make provision for probation services under clause 3. However, subsection (3) provides a carve-out in relation to that duty, and that is what the amendment addresses. The subsection states that the Secretary of State will not be required to take action or make provisions under subsections (1) and (2)
“if it appears to him that appropriate provision is being or will be made by any person acting otherwise than in pursuance of arrangements made under section 3.”
A number of issues arise from that. First, if there is a gap in provision, as seems to be envisaged in the subsection, is it right for the Secretary of State to be able to say merely that he is happy that provision will be made? That prompts the question how long he can be satisfied that that will happen. More fundamentally, is it acceptable that there should be a gap in provision? 
We have heard clearly from the Government that their intention is to cut reoffending and protect the public. It would therefore seem odd if the Secretary of State could sit back and say that he was satisfied that something would be provided in due course. The amendment is intended to limit his assessment by specifying that he may rely on the exemption in subsection (3) only if appropriate provision “is being made” rather than if it “will be made”.
It is important for us to understand the Government’s thinking on how the clause will be applied, because it is fundamentally about a responsibility to ensure the provision of probation services. It takes us back to the list of purposes of probation, which we discussed this morning and which underpins the Bill by assisting the courts in passing appropriate sentences and ensuring that offenders are properly monitored and helped. It is important for us to be clear what we are talking about and what discretion the Secretary of State will be able to exercise in making an assessment under subsection (3). Appropriate provision must be engaged and the Secretary of State should not be able to rely on an exemption based on his looking into the future.
The other point upon which the amendment touches is the last part of subsection (3), which states that the carve-out will apply if it appears to the Secretary of State that
“appropriate provision is being or will be made by any person acting otherwise than in pursuance of arrangements under section 3.”
That raises various questions in my mind about what those other arrangements might be. As we understand it, probation is to be provided through the mechanism in clause 3—in other words, the Secretary of State contracting with various bodies, agencies or companies, or making provision directly. That is the backdrop, and we shall obviously debate in much greater detail—I am sure that the Minister is pleased to hear this—the acceptability of that whole structure and the issues that have rightly been raised outside and inside this House about its appropriateness and the Government’s intentions.
Coming specifically to the amendment and subsection (3), it would certainly be helpful to understand what the other provisions might be. It may be that I have misunderstood the intended structure, but subsection (3) refers to
“pursuance of arrangements under section 3.”
That prompts a question, given the breadth of clause 3, about what such arrangements might be. The approach is potentially vague.
One of the criticisms that we have levelled—I can see the Minister smiling—concerns the amount of vagueness and uncertainty. There is a thread of argument about the language and drafting that applies all the way through the Bill, which leads us, and many other members of the Committee, to be uncertain about the Government’s intentions. One specific aspect of that uncertainty concerns what other arrangements may be in contemplation. Maybe the Minister will say that the other arrangements will be introduced in a staged way, and that they will involve existing provision through probation boards and other agencies and organisations.
The amendment deals with that lack of certainty and addresses the ambits of what has been set out and the Secretary of State’s approach. We shall certainly come on to more aspects of that when we move on to the next group of amendments. We must understand as clearly as we can what room for manoeuvre the Secretary of State has in assessing the provision. In understanding what other arrangements may be in contemplation, we will at least more clearly understand the Government’s approach to this part of the Bill.

Gerry Sutcliffe: I add my welcome to you, Mr. Bayley. We look forward to your support in helping us to get through the Bill this afternoon and beyond.
I also welcome the hon. Member for Hornchurch to his Front-Bench responsibilities. I do not wish to be rude to him, but he has consistently accused the Government of vagueness, generality and misunderstandings. That may be part of his style of operation, but I do not accept those contentions. We have been very clear about what we are trying to achieve in this Bill.
This morning, I explained that these discussions have been taking place since the Carter report in 2003. There may have been differences of opinion about how we are going to get there, but I think that people understand the Government’s intentions. This amendment is probably more of a probing amendment than anything else, but we will have a crack at trying to help the hon. Gentleman and see how we go. He is right to say that, under the current legislation, the statutory function for ensuring that sufficient provision is made for a probation service rests with the local probation boards. The purpose of clause 2 is to transfer this function to the Secretary of State to enable a greater range of providers to deliver services in a more flexible way which better meets the needs of offenders and communities, which are the main driving force that we talked about this morning.
 The key is that the provision is about providing a better service, so subsection (3) does not require the Secretary of State to make provision, if it appears to him that appropriate provision can be made through other means.

Edward Garnier: The Minister has said that the Secretary of State will provide services better to meet the needs of communities. It may not be directly relevant to this particular amendment, but that was an interesting expression. Surely the communities themselves are better able to understand their needs than the Secretary of State. Rather than the top-down arrangement that the Government are asking us to accept—we are dealing with communities in England and Wales and have a Scottish Member of Parliament as Home Secretary—would it not be better to have a bottom-up arrangement, or have I wholly misunderstood the situation?

Gerry Sutcliffe: The hon. and learned Member for Harborough has wholly misunderstood our intentions. At the moment, the powers lie with the probation boards, and the Secretary of State will take those powers to give them to commissioners. I am sure we will discuss in great detail later in the Bill whether that is centralisation, whether that is privatisation and what the approach should be in local areas. I certainly want to see local communities involved and, as I said this morning, it is clear that we need to get ownership by local communities of how we deal with reoffending and its impact on them and the wider country. It is about changing the relationship from the current monopoly held by local probation boards into the Secretary of State having the means to get the provision.
The Secretary of State will not reach his conclusions in isolation. We will shortly discuss the commissioners’ roles, who the commissioners will be required to consult and who they have already been consulting. There is a great deal of evidence from the consultations with the regional offender managers, and we will get on to that matter later in the debate.
The point of subsection (3) is to ensure that the Secretary of State is not required to take action in circumstances where it is unnecessary for him to do so. Just as we do not want him to have to take action where appropriate alternative arrangements are already in place, so we do not want him to have to take action in circumstances where such arrangements will be made, because we believe that that would be a waste of resources, which could create a possible duplication of effort and deter alternative provision from being made. The amendment would restrict flexibility and local autonomy and force the Secretary of State to intervene. We do not believe that any of that is desirable, and it would not meet the hon. Gentleman’s requirements. Given that we are going to get on to a wider discussion about the roles of the commissioners, I hope that that explanation is acceptable and that he will withdraw his amendment.

James Brokenshire: I have heard what the Minister has said. He is right to say that we will get on to other, wider details, such as the arguments about the top-down approach, competition and so on. However, I still feel that we have not really gained any clarity on subsection (3). I have heard what the Minister has said about what the Government are trying to achieve in relation to the clause and his comments about not making provision where it is deemed unnecessary. Our purpose in tabling the amendment and raising the issue in Committee is to get more clarity on what is unnecessary or otherwise, which would be helpful. I can see that the Minister would like me to give way, and I shall do so in the interests of clarity.

Gerry Sutcliffe: I apologise for not having quoted the example that the hon. Gentleman asked for. The other reasons relate to the voluntary sector. If a charity were run from premises in an area, but not by way of a contractual arrangement, there would be no need to use the powers relating to approved premises under the Bill. We are arguing that there is no need for the Secretary of State to be heavily involved in intervention at all times, so the hon. Gentleman is arguing against what he wants to achieve by asking for that.

James Brokenshire: The Minister’s clarification on that particular aspect of what I have put forward is helpful in that it gives us a clearer understanding of what that other provision would be. We would certainly not seek the unnecessary or increased involvement of the Secretary of State in the provision of services that are, in many ways, best provided locally. It is helpful to understand that what we talking about is in many respects a direct provision on the ground in the community, which we welcome.
We have not had any real clarity about how the Secretary of State would consider sufficiency when looking forward, which relates to the “or will be” that the amendment would delete. However, I shall note and review carefully what the Minister has said—

Gerry Sutcliffe: And reflect on it.

James Brokenshire: And reflect on it, in a genuine and honest way, which I am sure that the Minister will do, too. On the basis of his comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 31, in clause 2, page 3, line 1, leave out
‘such persons as he thinks fit’
and insert
‘representatives from—
(a) the judiciary;
(b) local authorities;
(c) providers of probation services;
(d) the Youth Justice Board for England and Wales;
(e) the voluntary sector;
(f) the Parole Board for England and Wales;
(g) officers of a provider of probation services;
(h) trade unions and professional associations; and
(i) any other such persons as he thinks fit’.—[Mark Williams.]

Hugh Bayley: With this it will be convenient to discuss the following amendments:
No. 5, in clause 2, page 3, line 3, at end insert—
‘(4A) In carrying out his duty under subsection (4) the Secretary of State must consult representatives of—
(a) the judiciary;
(b) local authorities;
(c) providers of probation services;
(d) the voluntary sector.’.
No. 6, in clause 2, page 3, line 3, at end insert—
‘(4A) The Secretary of State shall report annually to Parliament on the consultation he has undertaken under subsection (4) in respect of—
(a) the results of the consultation, and
(b) priorities for the probation service for the forthcoming year.’.

Mark Hunter: May I add my welcome to you, Mr. Bayley, as our Chairman, and say how much I am looking forward to debating the Bill?
I will start by stating the amendment’s objective, which is to create a legal duty on the Secretary of State to consult the judiciary, local authorities, providers of probation services, the Youth Justice Board, the voluntary sector, the Parole Board, officers of a provider of probation services, trade unions and professional associations and others. That is a fairly comprehensive list of people whom we are looking to involve in consultations with the Secretary of State. Why do we think that that is needed? Whichever way we try to appraise the Government’s intent, the consequences of the Bill seem clear—if it is passed as it stands, it will take the probation service out of the hands of the local community and put it into the hands of the Secretary of State.
It is my contention that those working at a local level understand better than the Secretary of State what resources are available and what is needed in their areas, and they can give advice about how to fit probation services to the individual needs of their areas. I am not convinced that the Secretary of State can perform tasks such as the resettlement of ex-prisoners into the local community as well as they can. I give that example, because the difficulty that ex-prisoners experience in fitting into communities is, among other indicators, reflected in the suicide rate for that group compared with that for the general population—male ex-prisoners are eight times more likely to commit suicide and female ex-prisoners are 36 times more likely to commit suicide than a member of the general population, which is a staggering statistic.
Bad commissioning decisions by the Secretary of State could end the carefully forged links between the voluntary sector, local authorities and the probation services, and could stop the effective flow of information that allows good end-to-end offender management. I am sure that we would all agree that that is crucial. If the structure is to change, it is vital that commissioning and planning decisions made nationally and regionally are informed by those who know the local problems in detail. Consultation between those groups and the Secretary of State should be frequent and close.
As has been said, the judiciary needs to be aware of demand for different types of sentencing, and to inform the Secretary of State of it. It needs to be fully involved in the process, to have the confidence of the probation system and to ensure the success of community sentencing. Local authorities are closely involved with the probation services and have a good understanding of the needs of their local areas. The Youth Justice Board has specialists who can advise on what can be done to improve youth justice in individual communities. People in the voluntary sector know their areas best, and that is where their expertise can best be used. They can advise on how they can get more involved—

Gerry Sutcliffe: I do not want to stop the hon. Gentleman’s flow, and I agree with many of his points. He mentions the role of the voluntary sector, and that is crucial; we will come on to it when we debate providers.
The voluntary sector could do a lot more. The hon. Gentleman proposes a list of those people who need to be consulted, and I agree with much of it. However, why does he want to include it in the Bill? There might be others who can provide support. Why does he want to limit it to that list?

Mark Hunter: I thank the Minister for his intervention. It is clear from the groups that I mentioned and the fact that the final one is
“any other such persons as he thinks fit”
that the prerogative that the Minister seeks to give to the Secretary of State is covered, so I do not understand his point. He indicated that he accepted some of the issues that I have mentioned—

Gerry Sutcliffe: I agreed; I did not accept.

Mark Hunter: He agrees; that is even better. I hope that that means that he will give similar favourable consideration to this amendment, in the spirit of co-operation that we have heard so much about in this debate.
The voluntary sector knows the areas in which its expertise can best be used, and can advise on how it can get more involved in the probation service. It can also advise on how it would co-operate with the groups already involved at local level.
I should like to dwell for a moment on the role of the voluntary sector. The Minister has said how important it is. Among the many representations that all of us have had on the Bill, I have one from the YMCA, not normally noted for its militancy on such matters. It says:
“There is a significant role that voluntary sector organisations can play, particularly in the rehabilitation of persons charged with or convicted of offences, and also in the supervision thereof. YMCA England welcomes the proposed intention in the Bill to increase scope for further provision. We work to prevent young people from engaging in anti-social behaviour and crime and we work with young offenders in the criminal justice system, in prisons and in resettlement into the community.”
So far, so good. However, it goes on to say that it is
“concerned that the scope for such relationships is limited in the Bill by a narrow vision of the voluntary sector. The Bill simply places the sector alongside others for services to be merely transferred, neglecting the particular contribution that a voluntary relationship has on preventing re-offending.”
Let me make one more comment on the functions of the Secretary of State. There is scope in the Bill for the Secretary of State to ensure that sufficient provision is made throughout England and Wales. The explanatory notes state that these arrangements will normally involve the making of contracts with the provider of services, but there is also the possibility of non-contractual arrangements. The clause appears to convey substantial power to the Secretary of State, while encouraging the involvement of additional providers. The YMCA said:
“We need reassurance that the Secretary of State will exercise his powers to ensure provision without compelling the voluntary sector to make this provision.”
The parole board, like the judiciary, needs to be fully integrated within the system so that when it decides to release prisoners into the community it can be assured that the public will be safe. Officers of the providers of probation services, trade unions and professional associations such as the National Association of Probation Officers are best placed to know if there are problems in the service and to advise the Secretary of State on whether the system is working.
NAPO, the Prison Reform Trust and the Local Government Association support our proposal and are very enthusiastic in their wish to ensure that the service keeps its local links to provide for the needs of the local area. Without the amendment, there would be a “one size fits all” situation in which local needs would not necessarily be met and which would result in increased reoffending, and the poor rehabilitation and reintegration of ex-prisoners into the community, which is the opposite of what we are trying to achieve.

James Brokenshire: As the hon. Gentleman said, the amendments in this group deal with the issue of transparency. They would require the Secretary of State, to consult certain persons in exercising his function to ensure the sufficient provision of probation services. The amendment is essential in enabling us to know who the Secretary of State will consult, and who will therefore inform the decision on whether there is sufficient provision of probation services and on the manner in which they are to be provided. That is an important aspect of what we are trying to achieve in introducing transparency and clarity to the Bill.
I noted the Minister’s comments that a list might be limiting, but I take the contrary view: not having a list would narrow the field of people that the Secretary of State could consult. To take it to its most absurd limit, without the amendment there is nothing in the Bill that will require the Secretary of State to consult anybody, even his officials. That amendments are important because they make the consultation of certain people explicit.

Gerry Sutcliffe: I understand the hon. Gentleman’s point. The reason for moving from probation boards to probation trusts is that at present the representation—who sits on those boards—is pretty specific. I want wider representation on the trusts. Sometimes, when there is a list, the people on it are consulted but, unintentionally, somebody may be missed. I know that the amendment contains the catch-all phrase,
“any other such persons as he thinks fit”,
but what will tend to happen is that only those on the list will be consulted. I hope that the hon. Gentleman agrees with me.

James Brokenshire: I hear what the Minister says, but it is more likely that someone will be missed out if there is no list or parameter. I understand his argument for rejecting the amendment but it is an important proposal, especially in the context of what he said about his approach, which is to sweep away probation boards and the ingrained personalities who are wrapped up in them. There is nothing in the Bill about who should be involved in assessing the breadth, suitability and ambit of the probation services. The list provided in amendment No. 31, which supplements our amendment No. 5, includes the main players—the key personalities and parties that we want to be consulted in the assessment of provisions that the Secretary of State is to carry out each year.
I find it slightly strange that the Minister argues to the contrary. I hear his argument that a list is prescriptive and the choice should be left completely to the discretion of the Secretary of State but, while I trust the judgment and integrity of the Ministers in the Committee, we must consider legislation for the long term—not just the duration of this Government but that of the next one and the one after. We all know that we are making legislation that might last many years, and we must consider all the potential problems.
I see no harm in prescribing a list of potential consultees in the assessment of the probation service. Indeed, I hope that the Minister agrees that those identified in the amendment should be consulted by the Secretary of State in the proper carrying-out of his consultation as set out in subsection (4). There is a need for transparency and confidence in the exercise of the Secretary of State’s function. It is important that the agencies and parties listed be involved in the process, and the most effective way to ensure that is by specifically including them in the Bill, for the reasons given by the hon. Member for Cheadle.
Subsection (4) must not be regarded as some sort of sop to the general duties of the Secretary of State identified in subsection (1) or the manner in which he is to perform them set out in subsection (2). In many ways subsection (4) provides a check and balance to ensure that the Secretary of State fulfils his duties properly, but it is crucial that we examine it closely to ensure that the proper balance is provided. He is given discretion within his duty in subsection (1) to ensure that sufficient provision is made throughout England and Wales. We need to be satisfied that he makes his judgments on as informed a basis as possible. I hope that the Minister shares that aim.
I see no harm in providing some clarity for agencies and organisations by showing that there is there is a positive obligation on the Secretary of State to consult them or at least to consult bodies that they know. Even if an organisation was not a direct consultee it could then feed its thoughts, concerns and views to a particular body to ensure that they were properly reflected in the annual consultation and fed through into the exercising of functions by the Secretary of State under subsection (1).
 On transparency, which I have mentioned and which is covered by amendments Nos. 31 and 5, it is important to include in the process of consultation and the annual examination of the extent, suitability and ambit of the probation service some sort of annual report of the conclusions, which would provide a framework for what is being debated and discussed with those parties. That would allow further external scrutiny of the Secretary of State’s decision-making process, which is why amendment No. 6 states that
“The Secretary of State shall report annually to Parliament on the consultation he has undertaken... in respect of (a) the results of the consultation, and (b) priorities for the probation service for the forthcoming year.”
We have talked about the lack of clarity, which I have highlighted through previous amendments, and I am sure that the Minister will be pleased to know that I may return to that point fairly regularly during these proceedings. I certainly see the role of the Opposition and the Committee as achieving as much clarity as we can on the meaning of the Bill so that people outside, when examining the Bill thereafter, can have as good an understanding as possible of the Government’s intentions.
 Those involved in the provision of probation services need clearly to understand the objectives, rationale, strategy and approach of the Secretary of State on the assessment of probation services and probation functions. Having an annual report to show who has been consulted, what those parties have said and what conclusions the Secretary of State has drawn, and therefore what the priorities of the probation functions and probation services should be moving forward, would not be a particularly onerous or arduous undertaking and would assist everyone involved.
We heard criticism on Second Reading about the lack of a business plan in advance of the Bill and the lack of clarity about what the Government intend. While we may not have a business plan, at least through this model we would have a clear annual direction and strategy drawing formally on the consultees, the consultation and the representations. I should have thought that that would be a very helpful thing to have.

David Kidney: I spoke this morning about shifting targets from year to year. Does the hon. Gentleman agree that while knowing what has happened in consultation and what the outcome has been is desirable, an annual report about that consultation is in no way an adequate replacement for a proper business plan over a number of years rather than just the next 12 months?

James Brokenshire: I wholeheartedly agree with the hon. Gentleman. The desire for clarity, certainty and the business plan has been highlighted by outside groups and by hon. Members on both sides of the House on Second Reading. I do not see the annual report as in any way a replacement for a proper business model and business plan. It would help in drawing up a business plan and understanding what is happening to the provision of probation services if an annual report were presented to Parliament. In that case, the House would have the opportunity to take up issues that may have been highlighted by consultees, but which the Government, perhaps reasonably, have decided not to follow through. We would have the opportunity to scrutinise the decisions that they have taken and better understand the approach and the manner in which the Secretary of State intends to exercise his duties in ensuring that there is sufficient provision of probation services across England and Wales.
 The hon. Member for Cheadle has highlighted the concerns of the YMCA. I am sure that all members of the Committee have received the YMCA briefing, which highlights the issue of the transfer of powers to the Secretary of State. In its briefing notes, the YMCA seeks reassurance that the Secretary of State will exercise those powers to ensure provision without compelling the voluntary sector to provide it. The voluntary sector seems to be concerned that, rather than providing the opportunity to get different parties involved to provide a greater spread and depth of provision, it will be in some way put upon. The YMCA comments in the briefing notes that that would be an abdication of responsibility on the part of the Government.
It would be helpful if the Minister were to address that point directly. Certain parts of the voluntary sector that are currently involved in the provision of probation and other services for offenders would value some feedback and clarity about the Government’s approach. The Government should not be seeking merely to put the voluntary sector in the frame and to abdicate their responsibility. We should ensure that we properly address issues of reoffending and the protection of the public in the extent and ambit of the probation services and in how they are delivered.
An ancillary point arising from the amendments, which goes to the crux of clause 2, is that it is for the Secretary of State to ensure that sufficient provision is made. We heard in the run-up to the Bill—the Minister said this when he launched it—that the focus would be on reoffending. I take from that that the measurement or criteria that the Secretary of State may take into account, or the approach that he may use in assessing whether provision is sufficient—I use those words in the context of subsection (1)—will be based on those factors. That is my assumption, but there is no clarity in the Bill on which criteria would be applied in assessing whether sufficient provision has been made for probation. It would be helpful if the Minister were to clarify the Government’s intentions on the criteria that will be applied properly to assess whether that function has been fulfilled.
Clause 2 covers a lot of important ground on how it is intended that the Secretary of State will carry out his responsibilities. I hope that the Minister will respond favourably to the points that we have raised and that he will consider the amendments in his customary way. The issue is serious, and whatever he may say, some clarity, framework and structure would be appropriate. I hope that he will consider the amendments in the names of my hon. Friends and the hon. Members for Cheadle and for Ceredigion appropriately and in the spirit in which they were tabled.

Robert Flello: May I add my voice, Mr. Bayley, to those who have said that it is a pleasure to serve under your chairmanship? This morning, my hon. Friend the Member for Stafford, who is a good friend, set out to help my hon. Friend the Minister to fine-tune the Bill. In that spirit, may I also make some brief comments?
 It is often hard to set up a structure to consider consultation and ways of doing things in future years. It is extremely difficult in the space of a couple of brief subsections to achieve the objective of the amendments. The requirement on the Secretary of State to consult at least once a year suggests the possibility of a rolling programme or some sort of wider consultation. I leave the thought with my hon. Friend the Minister that he might make a statement in Committee on considering a mechanism for a rolling programme, whereby at any time throughout a year, interested parties could put forward their views if it becomes apparent that something is not working well and should be changed. That would remove the need for amendment No. 6, as a rolling programme would make an annual report difficult. The Bill seeks flexibility, and the more flexibility that can be achieved, the better.
 I have looked carefully at amendments Nos. 31 and 5—amendment No. 5 is a subset of amendment No. 31. One would have to decide which categories various groups would fall into. For example, would councillors fall under the heading of “local authorities” in proposed new paragraph (b) in amendment No. 31? Councillors might argue that they are separate from local authorities in some respects, but their views, which come from the offices of a local authority, are important. Academics might feel that they fall within the voluntary sector in some respects but not in others. Paragraphs (a) to (h) are prescriptive, while paragraph (i) mirrors the draft Bill in specifying “such persons as” the Secretary of State “thinks fit”.
I suggest that my hon. Friend the Minister re-examines the provision and considers whether it should be worded to leave it open for all interested parties to have an input, but so that certain organisations have a statutory duty to take part when they have an influence. Such organisations could include the housing department of the local authority through to the Parole Board, in which case statutory bodies would have a duty but there would be wider scope in the Bill for people to have an input. I do not want to take up the Committee’s time by making a long speech to reiterate my points, but I hope that my hon. Friend will take on board the issues that I have raised.
I have sympathy with the lists mentioned by the hon. and learned Member for Harborough and the hon. Member for Cheadle. The question of who is required to be consulted must be much more open, but the format used in the clause is a better way of achieving that.

David Kidney: It is a delight to serve under your chairmanship, Mr. Bayley, because you are so reasonable, so knowledgeable and so pleasant with it.

Hugh Bayley: Watch it!

David Kidney: As we are Members of Parliament, it is inevitable that we will press the Minister to provide a list, because the alternative is to present him with a blank cheque and to leave the Secretary of State and his successors to choose whom they consult and whom they do not. It would be foolish for Parliament to leave itself in the position of not knowing what the future holds having not tied down an institution of government, rather than an individual. As others have said, the Minister is a very nice man, whom I trust entirely, but he will not be in his job for ever, no matter how much he would like to be in it for a long time. We are right, therefore, to want legislation that gives us an idea of what we can expect from consultation in the future.
On amendment No. 31, the hon. Member for Cheadle has rightly said that some probation services are focused on a locality. Much of the service is local, so there must be links with local providers and local partners, which need to work together in strategic ways. However, the trade union for probation has exaggerated the point, because other aspects of the work of managing offenders are not local. For example, a person who is sent to prison is going to be taken away from where they used to live and, when coming out of prison, may or may not return to the same place. During the prison sentence, they are away from that area anyway, and they may have several moves in prison. All that is much more regional or even national rather than local, and we ought to bear that balance in mind.
Nevertheless, the point that much of this is locally driven is a good one, so why will there not be local consultation? The shopping list before us refers to the judiciary but it does not mention local criminal justice boards. It refers to the Youth Justice Board for England and Wales but does not mention local youth offending teams. It talks about the Parole Board for England and Wales but does not mention the police locally, who have a great deal of interest in people who are released from prison on parole.
 There is something of a mixed message in what the hon. Gentleman says and what the list says. If the Secretary of State personally is conducting the consultation at a national level, we could say that the Secretary of State will consult with, say, the Youth Justice Board for England and Wales and we can trust it to collect information from all the local youth offending teams. As I understand the explanatory notes, however, the Secretary of State is going to consult through regional offender managers at a regional level. One would not expect a dozen or so ROMs all to consult with the national Youth Justice Board to find out what was going on in local areas in youth offender teams; one might think that they should consult with the youth offender teams.
Although I accept the hon. Gentleman’s argument, I think that there are flaws in the logic of his list. There are things missing from the list. The last entry is
“and anybody else that he thinks fit”.
The hon. and learned Member for Harborough, as a practising judge, can tell us that judges sometimes perversely, in our view as parliamentarians, interpret lists like this as saying that if it says at the end of a determined list “and anybody else”, that cannot have a very open-ended meaning; rather it means somebody related to or similar to the ones that are in the list. I hate using latin phrases, but ejusdem generis is the term that they use. So it does not follow that because the list says at the end “and anybody else”, it means that the Minister can consult many other people.
The Minister is right to ask, “Why do you present this list and stop me from consulting with others?”. There are some very important people missing from the list. Something like half the money spent on offenders’ training and their supporting accommodation now comes not from probation or offender management service funds but from the Learning and Skills Council and Supporting People, so is it not important to consult them? Many offending issues relate to drug abuse or mental health, so what about drug action teams and mental health trusts? Are they not important, too?

James Brokenshire: The hon. Gentleman is making a good point in highlighting the concept of consultation taking place at the regional level. Does he share my concern that, if consultation does take place at the regional level, that is where it may stop, and we may not get the proper feedback from the ground, which he has properly identified a need for in his contribution?

David Kidney: I am nervous about regional consultation because my constituency, Stafford, is quite a long way from Birmingham, the centre of the universe for the west midlands, and we often feel that we are left out of debates about regional issues, so I understand that danger. I am sure the Minister will have something to say about how he will ensure that does not happen, but our job is to say who we think should be consulted.
There is one more glaring omission. People will remember from this morning that I did not exactly promote the private provision of services and mentioned some of the dangers of it. Given that the intention behind the policy is that there will be private providers as well as public and voluntary sector providers, it does seem odd to me to produce a list that does not allow for consultation with people who might become providers in the future, unless of course the list’s promoter hopes not to allow it. That is a fair enough point. The providers are the people who won the contract, and I am thinking more widely about including the private sector as a consultee as it wants to win the contract. That is an obvious point to make.
 We need to ask ourselves how we square the circle. Do we leave the Minister to decide entirely for himself who he consults for ever into the future, or tie his hands with a list that is set in stone and cannot be diverted from or changed in the future? How can we do things differently? This is not an original idea, it is in the briefing from Rainer that I mentioned, but perhaps there should be a formal arrangement for an advisory group drawn from among those at national and local level, the trusts, if they are set up, and the probation service that exists today. We should provide for a pool of organisations and people from whom the members of the advisory group can be drawn, and then we should legislate to say that we expect consultation to be with that pool. I suggest that that is how we might move from where we are to where I think we ought to be.
On amendment No. 6, although I agree, as I said in an intervention, that it is entirely right that if there has to be consultation there should be an account of who was consulted and what they said, I would not like that consultation to be the engine driving the future direction of probation or offender management services. The idea that I mentioned this morning of taking a coherent, strategic approach to where the service is going is different from using the results of consultation. Clearly, the results of consultation should inform future decisions, but I would not want anybody to think that the service would lurch between plans from year to year, depending on the outcome of consultations in the 12 months beforehand.

Nick Hurd: I join those who have welcomed you to the Chair, Mr. Bayley.
I wish to make two brief points to the Minister. First, against the background to the Bill, of which he is well aware—a real concern about the centralist tendency of the Bill and its consequences in terms of dilution of local accountability—can I press him further on what would be the downside of a list? He suggested that some people might be left off the list. I put it to him that that is a tiny and manageable risk compared with the upside of sending a signal from this place to the key stakeholders in the process that their voices will be heard in future.
As my hon. Friend the Member for Hornchurch said, the duty to consult is not enough. I break the news gently to the Minister that, certainly in my constituency, the words “Government consultation” and “sham” have become inextricably linked. We have reached the point in our democratic process at which, in terms of public acceptance and expectation, the duty to consult is not enough. We now need a duty to report on the consultation and a duty to expose ourselves in power to external scrutiny of the responses to that consultation. My hon. and learned Friend on the Front Bench described that as helpful. I would go further and say to the Minister that it is absolutely necessary to the fundamental health of our democracy.

Neil Gerrard: I welcome you to the Chair, Mr. Bayley. As the Minister knows, I would argue, and will do so when we reach later clauses, that we should look at a different structure in any case. The decisions should not all be made by the Secretary of State. To a degree, the debate as to whether the Secretary of State had consulted with anybody would then become redundant. Some of the points that have been made relate more to the debate that we will probably have at some length on clause 3 about what work is done and what the role of the voluntary sector is. The concern of the YMCA about being compelled to do or not do certain things should be discussed in a separate debate about who does what, rather than during one on who is consulted.
I do not think that anybody would disagree that consultation has to happen. It would have to happen whatever the structure. Whether the Secretary of State or someone else is in the driving seat, it is clear that if the probation service’s functions are to work properly a wide range of people must be involved, as they are now. The probation service itself—which is clearly from the not-for-profit sector—is involved, along with the Prison Service and many other players in the field that have to be consulted.
I am not sure whether the amendments would achieve what it has been suggested in ensuring local consultation. There is a contradiction in what happens at different levels of the service. I am sure that my hon. Friend the Minister will say that he agrees with the principle of consultation. It is included in the Bill and referred to in the explanatory notes, which include a list of sorts, although it is in broad, general terms.
 Will the Minister expand on what is written in the explanatory notes about the consultation being undertaken at a regional level? If the structure of the probation service changes in the way that he intends, the regional offender managers will be some of the key people in the commissioning process. However, the other bodies that the explanatory notes suggest should be consulted—sentencers, other criminal justice agencies, local authorities and so on—are not necessarily organised regionally or by the same regions as the offender managers. I can see problems there: if consultation is regional, who will be talked to and at what level?
I understand the argument that we should know who is to be consulted, but I am a bit dubious about putting lists in Bills because there could be a problem in future if it is decided that a list needs to be changed. We would have to make primary legislation again to make any changes. I was attracted by the suggestion of my hon. Friend the Member for Stafford that it would be helpful to draw up a list but to establish a structure for doing so. The mechanism could be a requirement to make regulations spelling out the details rather than just a power of the Secretary of State. That would create a system that would be much easier to amend than if it were necessary to introduce primary legislation. If the Minister considers how changes can be made, he might see that as a way forward.
As my hon. Friend the Member for Stafford pointed out, once a list has been drawn up it does not take long before people start to think of other bodies that should be included. For example, before coming to the Committee this afternoon I was with some colleagues who were meeting the Disability Rights Commission. We were talking about the new disability equality duties, placed on public authorities since December, to produce proposals to promote equality of opportunity for disabled people, eliminate discrimination and so on under the Disability Discrimination Act 2005. I cannot remember which public authorities are exempt from the requirements of that Act—I recall that there are one or two—but some probation work may be covered by its scope. Another obvious group of bodies to be consulted is therefore the Disability Rights Commission and other such organisations. That is the real problem with lists in Bills—they become inflexible even if there is a catch-all at the end of them. My experience, and that of a lot of other people, suggests that such a catch-all does not always succeed in bringing in people who should be consulted.
Part of the difficulty in trying to discuss what happens about consultation at national level is that it tries to marry two incompatible things. We are discussing decision making at national level, when many of us believe that we should be considering local structures. We would prefer decisions to be taken through the probation boards, as they are now.
I agree with my hon. Friend the Member for Stafford about reporting. The key issue is that there is no long-term business plan, which is needed so that we know where the service is going over a period of years and so that targets can be measured and reported on. There is a clear and important role for the Home Affairs Committee in monitoring and examining what happens. However, I am not sure that I want a report on consultation. I want a report on what is actually happening in respect of achieving targets and in relation to the business plan, rather than getting bogged down in arguments about the consultation process. I understand perfectly the reason for tabling the amendments—the Committee and the House should know who will be consulted, which should be clear—but I have some doubts whether sticking that in the Bill is the way to do it.

Edward Garnier: I agree with much of what the hon. Gentleman has said, but we must consider the amendment in the context of the Bill as drafted. Subsection (4) states:
“The Secretary of State shall at least once in every year consult such persons as he thinks fit”.
If we cast our minds back not too far, we saw the sort of people whom the Secretary of State thought it appropriate to consult in designing the Bill. Members of the Committee may remember that there was a consultation process and that 748 people responded to it. Only 10 of them agreed with the policy behind the Bill, but—surprise, surprise—we got the Bill. The Secretary of State thought that he should consult 10 people out of 748. I appreciate that consultation does not mean guaranteed agreement, but when there is such a disproportionate response—only 10 people out of 748 were in favour of the scheme—one is entitled to be a little sceptical about whom the Secretary of State might think it fit to consult.
On 7 November 2006, the Home Secretary thought it appropriate to enter into a consultation exercise. He went to Wormwood Scrubs prison and addressed himself to an involuntary audience, namely the prisoners. In paragraph 54 of his speech, he said:
“You’re the experts on this.”
What was “this”? It was the future of the probation service, and up to a point that was right. However, it is interesting that the Secretary of State, to whom the Bill gives the power to consult such persons as he thinks fit, thinks it is proper to ignore 738 consultees and to seek the advice of the residents of Wormwood Scrubs.
With that background, it is entirely appropriate for the Committee to want to include amendment No. 31 or amendment No. 5 in the Bill. Without that spur, I suspect that the Secretary of State will just wander round the prisons of England and Wales consulting. I am not entirely sure that that is the way to run the future of the probation service, either with a capital P and S or a small p and s. I trust that I will be able to catch your eye, Mr. Bayley, in a stand part debate, if that is appropriate—

Hugh Bayley: indicated assent.

Edward Garnier: In that case, I invite the Minister to consider what he thinks the expression “such persons as he”—the Secretary of State—“thinks fit” really means in the context of this Bill.

Gerry Sutcliffe: I thank the hon. Member for Cheadle and other hon. Members for discussing the amendment in the way in which they did. Indeed, I am grateful for all the contributions. In the spirit of generosity and consensus that we discussed earlier, I have many things to take away to think about in greater detail. I shall respond to the amendments now, and I hope that we can make some progress and get to where we all want to be.
I am grateful to my hon. Friend the Member for Stafford for pointing out some of the exemptions and gaps in the list in the amendment. Hon. Members have accepted that the police, the learning and skills councils and, as my hon. Friend the Member for Walthamstow has pointed out, the disability bodies are not mentioned. I hope that hon. Members understand that we cannot accept the amendment in its present form, because the list does not meet the requirement to give different weights to different bodies. I also have to tell my hon. Friend the Member for Stafford that Birmingham is not the centre of the universe—it is, of course, Bradford and in particular Bradford, South.
A great deal of concern has been expressed about the role of the regional offender managers, not just this afternoon but on Second Reading. I want people to understand what we have got. There are nine regional offender managers and one director of offender management in Wales. Because they are regional, and national in the context of Wales, it is not envisaged that we are talking only about regional consultation. As I said this morning, we want to be in a position to meet our objectives, which are to reduce reoffending, to raise the profile of offending behaviour in the widest sense in terms of our communities and to make sure that there is a wholehearted community response to what we are trying to achieve.
We have also said that there is no big bang here. As we move on to discuss the Bill, which will hopefully be enacted so we can create the first trust in 2008, we will build on the existing good practice. The regional commissioners have already been in place for some time, and the regional commissioning plans will be published next week. I asked for an indication of those whom the ROMS have consulted. Lo and behold, although I told the hon. Member for Cheadle that I could not accept the amendment but that I agreed with many of the people on his list, they are the very people whom we have consulted.
 We have talked to local and regional partners including the public, private and voluntary sectors. They have been looking at sentences, regional reducing reoffending partnership boards, local criminal justice boards, local authorities, local area agreements and local strategic partners. Those are all the people who would want to be consulted in addition to the learning and skills councils and the disability organisations. We want to talk to them about tackling reoffending. The Government are not attempting to reduce consultation in any way or to compel the voluntary sector to provide services. There is no question, as the hon. Member for Hornchurch has suggested, of abdicating responsibility, which is not what this is about. The provision is about innovation—we need to do something different, because what exists now is not working in the way that we would all hope to see.
 I respect the work that the YMCA does, but I do not accept that this Bill has a narrow vision—quite the reverse. It is a wide, visionary Bill, and it has an objective that we all want to achieve. The YMCA has a role to play, if it wants one, at the various levels at which it wants to be involved. In direct answer to the hon. Gentleman, there is no prospect of the Government wanting to compel voluntary sector organisations to be involved, and there has been no attempt to include only some parts of the voluntary sector.
One of the concerns of the smaller, voluntary sector organisations is that they cannot compete on a larger scale because of their size and direction of travel—perhaps they are small organisations that provide particular services. We want them to continue to be involved. This is not about excluding smaller voluntary sector organisations; it is about innovations that might offer us the opportunity to reap the benefits of the route that we all want to go down, namely to cut the reoffending rate.
This morning, my hon. Friend the Member for Stafford mentioned the charity Rainer. I have a lot of sympathy with it and commend it and the National Council for Voluntary Organisations on their publication, which many members of the Committee have seen, in which they talk about what their contribution could be if they were only allowed to play their part. That is what we are trying to do in considering maximum consultation.
 I am not going to be taken down the route of the Home Secretary’s position and his Wormwood Scrubs speech. In subsequent speeches, including on Second Reading, he has acknowledged and accepted the role of the probation service and the dedication of the professionals who work in it. I understand why the trade unions have used the tactic of attacking the Home Secretary through the suggestion that he is somehow denigrating the probation service. However, he is not doing that and has not done so—he said on Second Reading that he recognises its dedication. We want to enhance the role of the probation office by maximising the opportunity for providers.
I believe that including the list in the Bill will cause the problems that my hon. Friend the Member for Walthamstow has mentioned. However, I agree that there is a need to do something, whether it is to take up the idea of my hon. Friend the Member for Stafford of an advisory body or whether it is to consider secondary legislation. In the spirit in which I said that I would consider the previous issue, I shall consider this—

Edward Garnier: Reflecting.

Gerry Sutcliffe: Reflecting in a positive way. I am not, perhaps, persuaded as much as I was on the previous amendment to look at what needs to happen.

Vernon Coaker: Considering.

Gerry Sutcliffe: That seems to be an appropriate route.
I understand the concerns. All of us have said in Committee, as well as in public debates and in the House, that these are matters about which there is a great deal of concern. I acknowledge the concern of the people who work in the probation service, because the Bill is about their future, where their service is going and what their contribution is to be. Our consultations and discussions—not only the consultations connected with the Bill but the other discussions that will have to take place on how we formulate the trusts and how we move forward on the services—will include the trade unions. I have always believed that we will not get change if we do not take people with us. We have to take the work force with us, because if we do not do so, we will not achieve that change. We have important things to do.
In the spirit of what we are trying to achieve, I hope that the amendment will be withdrawn. I will then go away and consider how to develop the measure in a more positive way, so that we do not miss anybody out. That is not our intention, and I know that it is not the intention of Opposition Members. We have to find our way through this, because ensuring that we maximise the consultation is a key area.
On the annual report, again it is important to publish the consultation. We will come to the responses to the previous consultation, which were not all in opposition to what the Government were trying to achieve, because people accepted some elements of it.
The Bill has changed from the initial Bill introduced in 2005. For example, we have listened to what people have said about the structure of NOMS, which has changed dramatically since its inception. I have explained the position as much as I can, but in the spirit of moving forward, I shall take the issue away and see what further amendments we can introduce in Committee. I hope that the hon. Gentleman will withdraw his amendment.

Mark Williams: The Minister started his remarks in the spirit of good will. I am not sure whether I should expect that in these proceedings, as I am a new member of the Committee, but on that basis, I, too, welcome you to your place, Mr. Bayley.
The background to this matter was succinctly put by the hon. Member for Ruislip-Northwood, who said that it was about confidence in a system. Manifestly, that confidence, not least because of the remarks made by the hon. and learned Member for Harborough about earlier consultations, is not there. When the legislation originated, there were serious concerns and doubts about the capacity of Ministers to listen, although I genuinely respect what this Minister is trying to do. There has been some scepticism about the extent of the list and its capacity to cover all sectors, but I do not think that we should minimise the significance in proposed new paragraph (i) of
“such persons as he thinks fit”.
The Minister should have no fear about that. It concerns his capacity to talk to the voluntary sector and build the positive relationship with it that he desires. None the less, he said that he will return to the matter.
The Minister talked more specifically, on the basis of what his hon. Friend the hon. Member for Stafford said, about the building of regional structures and advisory panels. Certainly, as a Welsh Member representing a rural area of some size, I can say that there are concerns in Wales about the structure in which we have one regional director covering a huge area.

Gerry Sutcliffe: It is not a regional director in Wales; it is a director, because Wales is a national country.

Mark Williams: I appreciate that. That will go a long way to reassure some people in Wales. The point is that there is a structure out there that needs to respond to the region or, in our case, the country in question. I really do not understand why the Minister fears the notion of a list. That is the crux of the matter. It is sufficiently open-ended to give confidence to the wider community and for him still to have flexibility. On that basis, we on the Liberal Democrat Benches would like to test the opinion of the Committee.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Edward Garnier: I will not be too long, I hope. I wish to highlight some of the problems that the clause will cause for the shared desire of end-to-end management of offenders.
First, there is an attitude problem from the Government. In his speech at Wormwood Scrubs on 7 November, to which I referred a moment ago, the Home Secretary said, and we must bear it in mind that this was in a prison:
“To the probation service my message is: ‘Never forget that your job is to protect the public—and what the public wants is outcomes—less crime, safer streets—not an outdated ideological debate about inputs and who delivers them.’”
That is an interesting remark for that particular individual to have made, bearing in mind his political history, but I am sure that the hon. Member for Walthamstow will have had close discussions with him about that. I am concerned that the Home Secretary thought it appropriate to lecture the probation service from inside a prison.
 One of the problems that the service faces is that it is overwhelmed with cases and under-staffed—it is well below establishment. I believe that the London probation service is about 150 officers below establishment, and that figure is replicated proportionately across the country. Why is the service so overwhelmed with cases? Because the prisons are overcrowded, with more than 80,000 people in them at the moment. When the Government came into office in 1997 the prison population was about 58,000. The prison estate is now officially overcrowded, testimony that comes from Operation Safeguard, which one of the Home Office Ministers signed into operation—I do not know whether it was the Minister present or one of his colleagues. The prison ship fiasco continues, and we know about the fiasco of the number of prisoners being moved from the secure estate to the open estate who voluntarily remove themselves to our streets, towns and villages. It is a pretty shambolic state of affairs and derives from Marsham street.

Hugh Bayley: Order. May I remind the hon. and learned Gentleman that we are debating the control and management of the probation service, not of Prison Service?

Edward Garnier: You are precisely right, Mr. Bayley. We are considering the responsibility for ensuring the provision of probation services, and one reason why the probation service is under such strain, and why I suggest the clause is not apt to deal with the current problems including the one that I am describing, is that the prison system is so overcrowded and the probation service cannot cope. Why can it not cope? Because, as I have said, a huge number of prisoners who ought to be looked after and rehabilitated by probation officers in prison are churned.
I expect that you know what churning is, Mr. Bayley. It is the constant movement of prisoners from prison to prison unaccompanied by their prison records, probation officers’ reports, sentence planning or rehabilitation, training and education planning. They move from prison to prison and cannot be reformed or supervised by the probation service. They cannot be treated and looked after by the wider Prison Service or the educational system. That is an extremely dangerous and damaging state of affairs.

Gerry Sutcliffe: The hon. and learned Gentleman discusses educational services. What evidence has he, or what organisation has told him, that the educational service’s interventions in prisons have not been completed?

Edward Garnier: I suspect that I have been to more prisons than the Minister in the past 12 months. I was appointed shadow spokesman on prisons in December 2005, since when I have visited a number of prisons. I have no doubt that the local learning and skills councils, which are providing teachers, trainers and others to assist in the training of prisoners, are doing the best that they can. The problem is that because of the overcrowded prisons, people queue up to get on a training course, to see the parole board, or to see the probation officer who is planning their sentence and their release plan, but they cannot get to the top of the queue. Before they get to the top, they have to move to another prison, because the governor has to release them to another prison or to the open estate to provide places for the people coming in.
About 500 prisoners are legitimately released every working day. I am concerned that in the absence of proper consultation and planning, and in the current state of affairs—that is to say a woefully and dangerously overcrowded secure prison estate—those people cannot be received by probation service care, still less released from it in a planned, sensible way. I want that to happen because it is good for the prisoners; there is a good moral case for improving the state of prisoners, who need to come out in a better state. I also have a self-interested case to make, as both a taxpayer and a citizen. We spend £37,500 each year on every adult prisoner. A prisoner who is inside for three years costs approximately £100,000. We are failing the taxpayer if the dividend is a high reoffending rate and the individual is back in prison within two years, which happens to approximately 67 per cent. of those who are released. We are also failing our constituents, who are the victims of the crimes.
There are three points that I ask the Minister to bear in mind when he considers the clause. Is he setting up the probation service to fail? Is he placing upon it an unbearable burden? Is he setting those who will provide probationary services a task which cannot be achieved, by virtue of the fact that this Government have arranged sentencing and prison-building policies that do not match? We have overcrowding. Prisoners cannot get access to probation officers, whose job it is to provide sentence planning and supervision of prisoners, in addition to pre-sentence reports and aftercare. If we cannot achieve those things, the Bill is a waste of time and is creating a false expectation among the public that something is being done.
This is the third reform of the probation service since 1997. Each time that it has been reformed, the Government have claimed that it is the answer to every maiden’s prayer, so why are they back here at the church porch yet again? They are back because they have not thought it through; they have failed properly to consult those who know about the subject; and they are overly exercised by the need to create headlines. A headline gives the impression of activity, but it is not the implementation of policy or of a plan that has been thought through.
I desperately want to be persuaded, but I make these remarks as a taxpayer, a citizen and a Member of Parliament who represents people who want to see the security of their homes and streets improved. I want to see from the Minister some understanding of the gap in understanding between the Department, which is under his political leadership and that of the Home Secretary, and the needs and concerns of the public. If I may say so, those are not crude trade union job-protection concerns but the concerns of professional individuals in the probation service and those who wish to offer themselves as volunteers or contractors in the probation world. The Minister knows that my party has no argument with the Government about putting this proposal out to competition, but he must bear it in mind that there are individuals who are desperately worried that the Government are building a regime that will cause damage. It will not provide the protection for the public that the Home Secretary, in his speech to the prisoners in Wormwood Scrubs, said he was so desperately keen to achieve.
We need to be more thoughtful and to ensure that the Government do a little more talking and thinking before they rush to legislate. We are on the 60th criminal justice Bill since 1997, and I am not sure whether any of them has increased the security of the public in reality or in terms of their perception. I urge the Minister, when he reflects, to think carefully about what I have said this afternoon.

Gerry Sutcliffe: Let me say at the outset that I do not doubt the sincerity and sensitivity of the hon. and learned Member for Harborough, or his expertise in the legal profession as a judge. However, I strongly disagree with his analysis, which is not surprising considering the political differences between us. What is important to me as a taxpayer, as a member of the public and as a Minister is that we should deal in facts, not fiction. We should deal with the reality of what is happening and not with the perception of it that some people are trying to engender.
On becoming Home Secretary in May, my right hon. Friend the Member for Airdrie and Shotts (John Reid) said that he needed time to reflect on what was going on in the Home Office. He said that he needed 100 days to introduce plans for reform, which he did—they were published in July, and we are proceeding with them.
The hon. and learned Gentleman has talked about the prison population. Yes; there are too many people in prison in the UK. I think that we all agree that it is wrong that we put more people in prison per head of population than any other country in western Europe, but that is where we are, and our role should be to protect the public by ensuring that there is sufficient capacity. The hon. and learned Gentleman is right about Operation Safeguard, which the Home Secretary has said was not satisfactory but which needed to be implemented to protect the public. To suggest that that situation has evolved only over the period in which this Government have been in office is nonsensical.
The hon. and learned Gentleman, who was elected to the House in 1992, will remember, as I do, the issues raised in respect of previous Home Secretaries in his party—for example, those concerning the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), the Prison Service and Mr. Lewis. Prison capacity has been a problem for successive Governments.
We must consider the relationship between the sentencing policies under successive Governments and where we are now. We have put in place the capacity to protect the public. We announced additional places in July and have subsequently announced further work on that issue. We have met the requirements in terms of capacity.
I was in the hon. and learned Gentleman’s position in opposition, and one wanted to heap on to the Government as many problems as one could when the Government appeared to be having difficulties. However, that approach is not appropriate if one is not dealing in facts. The hon. and learned Gentleman has given me the opportunity in this debate to challenge some of what he has said. He has talked about education programmes in prisons, and he is right about people being moved around, but I asked, and I continue to do so, about the impact on educational provision. That is why I asked him for evidence, and I shall continue to ask for evidence, not only from Opposition parties but from trade unions that say that things are happening in our prisons.
I want such comments to be evidence-based. If they are, we will act on the evidence that is put to us. However, I want to see the evidence, whether it is from NAPO or the Prison Officers Association. I do not want the public to be put in a position of fear and panic about things that are not the case. I hope that we can have a debate on the views of the hon. and learned Gentleman that is based on the facts. Listening to him, one might think that nothing had improved in areas such as probation. However, there has been tremendous improvement in, for example, unpaid work, which more offenders are doing and which is gaining greater acceptability. More offenders are being taught basic skills.
The hon. Member for Cheadle has talked about the impact of community sentencing. There has been an improvement in what is happening in our prisons, which is due to the dedication of prison staff and probation officers. I do not accept that we are not thinking things through. Everybody who has spoken to me about end-to-end offender management says that it is right and that it is the appropriate thing to do.

Edward Garnier: That is not controversial.

Gerry Sutcliffe: What is controversial is the means of achieving that improvement. At the moment, although progress has been made, we are not achieving what we want to achieve, which is why the Bill is necessary.
This morning, I mentioned the timescale of the evolution of this Bill from the Carter report in 2003 to where we are now. We think that we have the balance right and that we are offering the probation service an opportunity to develop further through the flexibility of trusts and to look at wider providers. That is the context in which the Bill is before us today and in which clause 2 is set out.

Crispin Blunt: I have two prisons in my constituency, one of which is High Down, which is being expanded by 360 places. I wish to focus on whether the probation service has the opportunity to succeed in the terms laid out in clause 2. At that prison, two new wings are being built with a capacity of 360, and the governor is already planning to put more than one prisoner per cell into those wings in order to relieve overcrowding elsewhere. I suspect that, as the population pressures on the prison service show no signs of abating, those wings are going to be as overcrowded as the existing prison is now, with three men to a cell designed for one. Can the Minister give the Committee any comfort that the relentless pressures on the prison service, which then make themselves felt on the probation service—the subject of the clause—show any signs of abating, so that things can get back into balance?

Hugh Bayley: Order. Before the Minister replies, I must remind all hon. Members that we are here to debate the probation service. Although the hon. and learned Member for Harborough eloquently explained why overcrowded prisons make the work of the probation service more difficult, it is the impact on the probation service that we must debate in relation to this clause.

Gerry Sutcliffe: I thank you for that advice, Mr. Bayley. In answer to the hon. Member for Reigate, risk assessments as to appropriateness are undertaken in relation to all extensions to prisons and all the capacity issues that we have considered. It is important to us that the programme that we have introduced meets the requirements of those risk assessments. The hon. Gentleman will know about the announcements that have been made in the House in a number of statements by the Home Secretary. If he wants to develop that discussion further, I shall be happy to meet him outside the Committee to talk about his area and High Down.
Let me return to the probation service. On the clauses that we have discussed today, we have seen a genuine willingness to try to come to some conclusions. Politics will always play its part, as it must in our democratic society, but I would be alarmed if there were scaremongering or if claims were made without evidence. As the Home Office Minister responsible for such matters, I shall pursue that, because I do not want to be involved in making the public ever more fearful of situations that they might face.
On that note, I hear what the hon. Members are saying and look forward to our further discussions. I hope that the Committee will support clause 2.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Alan Campbell.]

Adjourned accordingly at four minutes to Four o’clock till Tuesday 16 January at half-past Ten o’clock.